EU court: national authorities must disapply national rules that are contrary to EU law

Case C-378/17 Minister for Justice and Equality, Commissioner of An Garda Síochána v Workplace Relations Commission, ECLI:EU:C:2018:979

This case concerned the implementation of EU rules on equal treatment in employment but it has relevance for the implementation of all EU rules, including those relating to the environment.

In response to a preliminary reference from the Irish Supreme Court, the Court of Justice of the European Union confirmed that national bodies that apply EU law in the exercise of their powers must be able to disapply conflicting provisions of national law.

The national body in question was the Workplace Relations Commission (the “WRC”), which is responsible for enforcing the Equal Treatment Directive (Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation) in Ireland. Specifically, persons who claim they have been discriminated against may bring their case before the WRC, which has the power to order a number of remedies, including compensation and equal treatment.

Three persons complained to the WRC alleging that they were excluded from a recruitment procedure because of their age, in breach of the Equal Treatment Directive. Before the WRC adopted its decision, the Minister for Justice and Equality applied to the High Court for an order declaring that the WRC did not have jurisdiction to hear the case because only courts established by the constitution can disapply measures of national law. The High Court granted the order and the WRC appealed to the Irish Supreme Court, which referred the question to the CJEU.

The Court of Justice first noted that a distinction must be made between the power to disapply, in a specific case, a provision of national law that is contrary to EU law and the power to strike such a provision down which has the effect that it is no longer valid for any purpose.

With regard to the power to disapply a provision in a specific case, the Court recalled its case law according to which the principle of primacy of EU law means that national courts are obliged to give full effect to EU law by refusing to apply conflicting provisions of national law. The Court confirmed that this duty applies to all organs of the State which apply EU law within the exercise of their respective powers, including administrative authorities.

Applying this principle to the facts of the case, the Court held that the Irish legislature chose to confer the specific power of ensuring compliance with the Equal Treatment Directive on the WRC. As such, the principle of primacy of EU law requires the WRC to provide the legal protection which individuals derive from EU law and to adopt all necessary measures to ensure that EU law is fully effective. If needed, this requirement entails disapplying provisions of national law that are contrary to EU law. The fact that individuals may bring an action in the High Court regarding the alleged incompatibility of national law with EU law does not affect this conclusion.

This judgment applies to national authorities that apply EU environmental law within the exercise of their powers. To take permitting decisions as an example, this should ensure that national authorities, on their own initiative, disapply provisions of national law that are in conflict with the EIA Directive and other requirements laid down indirectly effective provisions of EU law. It should also affect the way that national authorities deal with the legal consequences of failures to comply with EU environmental law. Using permits as an example again, the duty to ensure that EU law if fully effective should preclude administrative authorities from relying on provisions of national law that allow them to grant permits or allow permits to remain in force that do not comply with EU environmental law.

With particular regard to access to justice in environmental matters, the Court of Justice has already confirmed the duty of national courts to disapply provisions of national procedural law that cannot be interpreted in compliance with Article 9 of the Aarhus Convention (e.g. case C-664/15 Protect in relation to Article 9(3) AC). This case would suggest that administrative review bodies should do the same.